Posted
by
kdawsonon Tuesday August 05, 2008 @12:03AM
from the because-we've-got-planes-that's-why dept.

eldavojohn recommends coverage at Ars on a Byzantine case just thrown out by an appeals court. The US Air Force cracked the code that would expire a piece of software. For this they were sued under the DMCA in Blueport v. United States. The Court of Federal Claims heard it and threw it out. "The reasoning behind the decisions focuses on the US government's sovereign immunity, which the court describes thusly: 'The United States, as [a] sovereign, "is immune from suit save as it consents to be sued... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit."' ... 'The DMCA itself contains no express waiver of sovereign immunity,' the judge wrote, 'Indeed, the substantive prohibitions of the DMCA refer to individual persons, not the Government.'"

This points out the obviousness that the US government is no longer bound by the tenets of what was called "democracy", a concept that is fundamentally at odds with the concept of "sovereignty".

In a so-called democracy, the executive is only authorized to carry out the instructions of the legislature, and is subject to the judiciary in doing so.

If the courts are saying that the executive can break the laws set by the legislature, and are only subject to courts when they, the executive, consent to it, then the power being invested in the executive is that of the old notion of King as appointed by God as supreme authority over the land, whose word is Law and not subject to question.

Given this development, things like warrantless wiretapping are not even the tip of the iceberg, they're a tiny lump of seagull shit on top of the tip of the iceberg.

The post before yours is a link to goatse, it is of course modded offtopic, you start your post with "This is NOT off topic." And I spend the entire time reading, confused and trying to figure out what overarching metaphor links US Sovereignty and wiretapping to goatse.;)

<US> Become democratic, open your markets and your economy will flourish.<Poor_Country> That sounds great, we'll give that a shot.* US companies then enter and ravage what little wealth the locals have, expatriating funds and enslaving previously subsistent worker.<US> Haha gotcha!<Poor_Country>:(

I'm not saying your wrong, or that actions that have happened like this are justified, but do you think any country in power would be any different?

Yes, the U.S. has issues. Can they be fixed? I don't know. I think the bigger issue is correcting human behavior with those who are granted the responsibility to rule. Those who's life desire is to rule should throw a red flag. (this includes both presidential runners)

The complicated nature of the interdependencies between Nations around the Globe makes things

rofl...yeah, guess what. Europe does this too. Ever hear of the World Bank? It's the whole reason they exist...to fuck over poor countries and EVERY western country takes advantage of it. Thanks for trying to pin it all on the US though. You guys are just as dirty as we are so fuck off.

Democracy is not a form of government, it is a conception of social order, it is the structural manifestation of libertarianism, and capitalism is the economic face of libertarianism. They are all tightly related.

As for denying that the US engages in exploitation of the third world, perhaps a trip to your local library and some light reading in geopolitical history may be enlightening. Try to following keywords:

Then perhaps look at the way USAID operates, the "conditions" placed upon nations that receive its aid, and the results over the last few decades. Perhaps you'll slowly realize that USAID is really just a program of bribing local tinpots to allow US economic interests pillage the locals. Its then easy to point the finger and say "Hey, well, the locals are suffering because the guy we gave the aid to stole it, our expatriation of profits has nothing to do with it."

the fact that sweatshops are the only option to many is because stronger foreign companies have been allowed into the domestic markets, destroyed previously functioning economies and essentially turned the local economies into a gigantic factory.

I probably could be convinced to live with the destruction of the local economic ecosystem, if a fair share of the profits stayed in the country, or if the WTO wasn't used as a big stick to stop governments from preventing this from happening.

So no, sweatshop bashing is quite validly in that package because it the sweatshop phenomenon is just another, run of the mill economic exploitation method.

The court is not saying the executive branch can break laws set by the legislature. The court is saying that the law that the legislature wrote is written in such a way that it does not apply to the executive branch. If Congress wanted to write it differently, they could have. And still could, for that matter.

News Flash: the US government (or any government for that matter) NEVER obeyed it's own laws. This is recorded throughout history. The Military has done crap like this for decades and will continue to do so.

This is simply reporting that is bringing to light the Standard Operating Procedures that they use.

I suggest you brush up on the history of civic code [wikipedia.org]. The development of the Western World has been very much a transition of making ever more entities (individuals and institutions) subject to law. A typical example for such a transitional order would be the civic code enacted by Frederick the Great in Prussia [wikipedia.org]. Of course he was a bit ahead of the curve and actually did not believe in the divine rights of kings famously calling the crown "a bad hat that lets the rain in".

With regards to the US you are almost right as the government does lavish itself with excessive immunity (which is why the court ruling appears absolutely proper). But there are exceptions [wikipedia.org]. For the UK you would be right "as lawsuits against the Sovereign in his or her personal, private capacity are still inadmissible in British law". Pretty sorry state of affairs if you ask me.

It goes without saying that much of the credit for this approach goes to the American Founding fathers and Jefferson in particular. Assuming that you are American I'd wish you knew better than espousing this view. It reeks of fatalism.

Democracy, the word coing from Greek, literally, means "rule by the people". It is not a specific governmental structure. "Republic" refers to a particular set of characteristics that define a type of government. Thus, a republic can be democratic. That's what "of the people, by the people and for the people" means; a republic with democratic characteristics.

I hate to harp on this, but I really think that the wikipedia entry on republics is more a common take the concept of republic. Look back at Plato's Republic, and you will find a government that is deemed a republic (by the originators of the term, nonetheless) yet has no origin from popular choice. In fact, Plato even builds in his eugenics program to keep the ruling class in power (because, of course, "fit to rule" is a trait that is inherently passed through genetics). Again, not that I disagree that most republics of today have an element of public choice, but I disagree that it is inherent in the term.

A republic can also be undemocratic (Zimbabwe, Soviet Union). There are democracies that are not republics (Britain, Sweden). The two concepts are, as you point out, not mutually exclusive as GP seems to think - they're not even on the same axis. You can draw a 2 x 2 grid and find examples in each cell.

Democracy as the ancient Greeks understood it meant rule by a certain group of people, not all people. In ancient Athens (5th century BC? please correct me) this meant men over a certain age who owned land. Not women, not slaves (it was fine to have slaves in this democracy) and not free men who didn't own land. Thus "democratic" can have a wide range of meanings. I think it would be fair to say that several of the founders of the US constitution wouldn't be too happy to have women and certain ethnic groups having the vote but still feel they were being true to the statement "of the people, by the people and for the people".

The use is called a 'Democratic Republic'
'Democratic' in this case is used as an adjective, with Republic as a noun. A republic (run by representatives of the people, NOT the people) with elements of a Democracy (the people chose the representatives and some of the laws).
We are primarily a Republic, not a Democracy, and when the two conflict, the republic wins out more often than the democracy.

Plato would disagree. In The Republic, Socrates discusses what form of government the State should be. He states that democracy erodes to oligarchy which turns to aristocracy, which inevitably becomes a dictatorship. Shortly thereafter, he states that the most stable government would be a republic.

The argument being, if you are using Greek etymology as the basis for non-exclusivity, then I would imagine the Greeks should not reflect such a dichotomy in their own writings.

Finally, "... of the people, by the people, and for the people..." is an except from the Gettysburg Address, and is not in any way a declaration of government. Rather, the Declaration of Independence and the Constitution itself are the only documents that define the government of the United States of America. Please let me know exactly where the word "democracy" appears in either of those two documents please.

If you want to nitpick governmental structure, I think the US is a federation. But it's a (somewhat) democratic federation without a monarch.

The word "republic" simply means there's no monarch. The word "democracy" means that the government be it monarchy or republic, is subject to (dis)approval of the people. And "federation" means it's a collection of smaller semi-autonomous states under a somewhat but not completely centralised government.

All these terms are orthigonal. Republics can be federations, but many aren't. Monarchies used to be autocracies, but nowadays most of them are democracies. Republics can be democratic, partially democratic (with a voting elite of the rich/white/patricians/party members) or completely undemocratic.

Although sometimes it looks like the US is trying to combine a democratic, federal republic with elements of divine-right monarchy, and that's definitely not something you see every day.

The US founders meaning of republic was that there would be a government by representatives rather than by direct democracy, by a true federation (where the central government's power is derived from that of the component states), or by a monarchy or dictatorship. The word has evolved somewhat, as countries have found it useful to call themselves republics even if it would not accord with how the US founders used the word.

The word "republic" has a few more shades of meaning; from the Latin "res publica", or "public affairs", it implies that the affairs of the nation are the collective interests of its public citizens, rather than the private domain of a despotic monarch.
The US system of government is basically the British parliamentary system from c. 1780, replacing the monarch with a president and with greater and more formalised democracy. Certainly you guys seem to treat your presidents with far more respect that we tr

How about a little context there? The
3/5 Compromise [wikipedia.org] was a giant wart on the Constitution.
Consider Luther Martin:

Luther Martin of Maryland, a slaveholder, said that the slave should be subject to federal regulation since the entire nation would be responsible for suppressing slave revolts. He also considered the slave trade contrary to America's republican ideals. "It is inconsistent with the principles of the Revolution," he said, "and dishonorable to the American character to have such a feature in the constitution."

The US is hardly a federation. Each state is held hostage under threat of arms. In 1860 our southern states tried to opt out and 500,000 died on the battlefield when the US proved by force that states have no right to disassociate at all.

According to Wikipedia, the US Civil War began when Confederate forces attacked a US military installation, rather than when it was created. If so, I'd say that they were asking for it.

And let's not forget that the southern states seceded over slavery. I'd say it's poetic

Federation is basically when a group of states (in the technical sense, a defined area of land with a government) get together and decide that acting as one foreign policy unit is a good thing, and there is a weak federal government to enforce the limited agreement between the members.

I think (but am by no means certain) that's a confederation (like Switzerland) and a federation is a bit more centralised than that. At least, that's the impression I've always had.

The USA under the articles of confederation was a federation.

That's odd. Sounds like it should be a confederation.

The CSA, aka "The South" is a federation. The "Russian Federation", not so much. The EU, almost.

Looks like my definition of "federation" fits most political units that call themselves a federation, whereas your definition fits those that call themselves a confederation.

Ain't it striking how willingly some folk casually toss out "democracy" when their team has the ball? Like they listened to one too many Limbaugh rant against those absurd "civil liberties" and "rights."

Listen for their screams and sobs, after the turnover next year, when they suddenly rediscover that U.S. government is, indeed, of the people, by the people, for the people.

Which is funny, because as a counter-example, here in Canada, a constitutional Monarchy and not a Republic, you are certainly entitled to sue the Sovereign, though strict time limits apply, and suing Her Majesty the Queen abrogates your right to a jury at Trial. But you can still do it. And you can still win. In the firm I work at, auto collision files often have the Queen named as a co-defendant or a third party. In fact, courts in Canada also hand out awards to people who've been imprisoned and later found innocent, they are some of the biggest awards handed out in the civil system.

So really, the concept of Sovereign immunity is only as entrenched as you want it to be, in a democratic country.

The US Gov't is hardly a lie. There it sits, doing exactly what we, the people, have made it to do. We are truly a democratic country. Gov't of the people, by the people and for the people. The current state of our government is what it is because it serves the people who invest the most of themselves in it. The more time, blood, sweat, tears and wealth a given group invests in our government, the more represented they will be. So if our government seems to be run by big oil, it is because the citizens of the U.S. have allowed it to be that way, through actions on big oil's side and inaction on everyone else's.

Yes, occasionally the government needs to be reset, but we're not at the stage of open revolt yet. If second amendment rights are abridged to the point where citizens are not allowed to arm themselves, many 'contrarians' will take their beliefs underground. With all those who oppose actions made by the government underground, rather than working within the system, you will see a revolution. If they are not driven underground, we should see evolution.

The social force required to bring about great change is great. You have to have support of 10% of the population to have a successful revolution (armed or not). That is the kind of change we'd need to see to fix the problems with our government. But it will not happen without great need. The U.S. citizen will not rise up from apathy without being forced to it. If the change is gradual enough, the sheep may even become more like drones, even more enslaved by the system. But until there is a great cause, a great rallying issue, good luck in waking us up.

Did you RTFA? The guy asked for a programming training and it was denied. He studied for himself, wrote the software by himself, and bring it to the office, to get his job done. Thus, USAF didn't paid him to write this software. It is *his* software, and he has the right to sell/rent/loan it to anyone he wants, including his employer.

The same applies for every job in the world: you can do whatever you want in your spare time, unless it competes with what the company you work for produces.

In most civilian jobs you have to sign a paper that states something like "what you do for the company is the company's property". I suspect that most agreements are a bit more stringent than that. When you are in the Armed Forces of the United States, I'd say that those rules apply, even more so.

It appears that this guy took his employer's 'system', redesigned it and then tried to profit from it by having a vendor sell it back to his employer. That stuff would get you fired at my company. I wouldn't expect it to go over well for somebody in the armed forces either.

I'm sorry dude. You did a great job by helping out. But... Your job is to help out. Suing the US Government over something that you produced while working as a government employee isn't going to work.

If the rest of his work is fine, I doubt he'll run into any serious flack for it. He doesn't get a "review board", just a performance report, and enlisted careers are much more damage-tolerant than those of officers.

He should have used the suggestion program, made a buck that way, and used the positive outcome to further his career. (Opinion based on 26 years enlisted service.)

Sounds like a talented guy, but for some reason clueless outside of his field of expertise.

True, but the implications of "The United States, as [a] sovereign, 'is immune from suit save as it consents to be sued... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit,'" is particularly frightening language to me.

I'm no lawyer, but I read that as, "We're the government, we can't be sued except when we want to be sued and even then we'll define the conditions of the jurisdiction in which our lawsuit will take place as it suits us," (so to speak).

The sovereignty issues are a bit unnerving, but one of the things TFA also states is that he brought in beta copies for testing. He had government employees testing his software on government equipment on government time. While he was possibly due some recognition for going above and beyond the call of duty, if you did that at most any tech company, they'd have a reasonable claim to owning that software or owning an interest in it.

And since he did it within in the military, he's lucky he's not facing a court martial for selling the software to Blueport and pulling this crap.

I really dislike the decision, because it hinges on stuff that pisses me off. But the guy who wrote the software pisses me off too.

The sovereignty issues are a bit unnerving, but one of the things TFA also states is that he brought in beta copies for testing. He had government employees testing his software on government equipment on government time. While he was possibly due some recognition for going above and beyond the call of duty, if you did that at most any tech company, they'd have a reasonable claim to owning that software or owning an interest in it.

Except that the court didn't say that the USAF owned the software, but that they were immune from the DMCA for cracking it.

The court didn't make any findings because they can't. They found that they lack jurisdiction to hear the case at all. Its commentary on the DMCA's language is simply in the vein of "the government is immune and this bill didn't provide consent from the government to be sued, therefore they remain immune." The only news here is that an appeals court just agreed with that assessment.

In the case of copyright law, the US has given up much of its immunity, but the government retains a few noteworthy exceptions. The one most relevant to this case says that when a government employee is in a position to induce the use of the copyrighted material, "[the provision] does not provide a Government employee a right of action 'where he was in a position to order, influence, or induce use of the copyrighted work by the Government.'" Given that Davenport used his position as part of the relevant Air Force office to get his peers to use his software, the case fails this test.

So he owns the copyright but since he induced the use of his copyrighted work in the course of his regular work related duties he forsakes his right to actionable copyright proceedings as it relates to the USAF.

He can still sell his copyrighted program to others, the USAF does not own his code -- the USAF just never have to be concerned about any claims of violation of copyright in regards to this code because they are immune because of his actions.

That's not exactly what was ruled here. The issue of whether the federal government is immune from copyright is different from the issue of whether the federal government is immune to suit under the DMCA.

The issue here is whether the federal government committed a tort against the copyright owner by cracking encryption as proscribed in the DMCA. While the government may or may not have waived immunity under normal copyright legislation, it has apparently not waived any immunity under the DMCA in partic

Exactly! That's the worrying part about this. Had the court ruled that the USAF was (at least partially) owner of the software and therefore allowed to modify it, then there'd be no problem at all. It's the unlimited license to pirate, copy and steal that's wrong here.

Courts do their rulings in the most efficient way possible. The USAF was sued for a DMCA violation. The usual defences against this are: (1) The plaintiff doesn't own the copyright. (2) The defendant didn't breach the DMCA. In this unusual case, there was a third defence: DMCA doesn't apply to the USAF. Once that was found to be the case, there was no point in even looking at the other defences. Even looking at whether the USAF had rights to the software would have been a waste of tax payers money.

The plaintiff is still free to sue the USAF for copyright infringement.

TFA also states is that he brought in beta copies for testing. He had government employees testing his software on government equipment on government time. While he was possibly due some recognition for going above and beyond the call of duty, if you did that at most any tech company, they'd have a reasonable claim to owning that software or owning an interest in it.

Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

In short, you can sue the government if an agent of the government commits a tortuous act that, if performed by a private citizen, would ordinarily be actionable in court. Maybe they sued for more than $10k and disqualified themselves from using this law, I don't know. But if a non-lawyer can find this information after about two minutes of searching, why didn't Blueport's attorneys find it?

Not that it matters, they had tenuous claims to the copyright, anyway. They're lucky they didn't get hit with an injunction to stop selling it. But now every other content producer out there (*cough*Microsoft*cough*) is stuck with this precedent.

Expect to see some amicus curiae filed by large software companies in the near future to get the Supreme Court to issue a writ of certiorari to rehear this case.

But if a non-lawyer can find this information after about two minutes of searching, why didn't Blueport's attorneys find it?

The Federal Torts Claim Act doesn't apply here; there's a specific US statute, 28 USC 1498 that deals specifically with bringing copyright infringement cases against the government, and that was at issue here. Blueport's attorneys are quite familiar with the FTCA, as they mention it in their appeal, but only used FTCA cases as analogies.

For active duty I don't believe you ever have any time you could claim was outside of their responsibility. They provide housing, food, health care basically everything. If you want you may live off base but usually for active duty they pay for that too. Working for the military you are never working outside of your military responsibilities.

So if you're working for Company 'A' and in your off time at home you have a personal software project that you end up selling to Company 'B,' Company 'A' should be able to discipline you? I think not. If this was coded on official paid time, then I would whole agree with you, but there is no way to actually know. Therefore, the USAF couldn't legally touch him even if they wanted to.

Read TFA:

Although Davenport did his development on a personal system at home, he began to bring beta versions of his code in for testing...

He did testing on his employer's equipment. Company A isn't going to try to claim ownership to something you develop on your own time and on your own equipment, using skills they refused to help you acquire. But when you start using their equipment on their premises to test and troubleshoot your invention, you trigger the clauses in their employment contracts that give them at minimum an interest in your software if not outright ownership.

Considering that this software was meant to solve a problem he encountered in his job, was used in his job, was tested in his job, and was distributed by him to his co-workers, they have a hell of a leg to stand on that he crossed the line between private time and work time in the development of this software. And that leaves out the fact that as a soldier, he technically doesn't have private time.

Now, he sued them under DMCA. Rather than claim ownership of the software, the government claimed immunity. This was not because they couldn't, but because the immunity defense looks to be an easier way to get the case dismissed. But if the immunity defense is eventually knocked down by a higher court and the case goes to trial, you can bet your ass the Air Force would raise their right of ownership or partial ownership as a defense. Like a lawyer in the RIAA trials said... you can't infringe your own copyright. So I'd totally expect that to be a fallback position for them.

So if you're working for Company 'A' and in your off time at home you have a personal software project that you end up selling to Company 'B,' Company 'A' should be able to discipline you? I think not.

As a matter of fact this is quite common. Particularly if they can argue that you developed the idea in the course of your employment. If you did any of the actual development on company time, or property, you have even less of a leg to stand on.

The major US corporations' employment contracts almost always include a provision granting them ownership of anything created by its employees within the corporate fields of business, even on the employees' own time.

So if you signed the standard contract and work for an aerospace company, and at home create a great little program for automating personal aircraft flight plan creation and filing... they own it. If you create a great cocktail recipe or write the next great American novel, it's yours.

All laws are not written for all entities without limitations. The American's With Disabilities Act does not apply to state governments or the federal government. There are other laws and reasons that the fed and state governments make their buildings handicap accessible, but no one can sue the fed or state to make it happen.

I've heard of this before, but it seems to be applied very inconsistently. There are plenty of cases where the government is successfully sued, and certainly does not seem to like it one bit. Could some lawyer please enlighten us as to why sovereign immunity of a government agency seems to only apply in some cases?

If sovereign immunity is real, why does any government agency (such as a state university) waste tax money on liability insurance? It's completely unnecessary if they can't be sued.

True, but the implications of "The United States, as [a] sovereign, 'is immune from suit save as it consents to be sued... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit,'" is particularly frightening language to me.

I'm no lawyer, but I read that as, "We're the government, we can't be sued except when we want to be sued and even then we'll define the conditions of the jurisdiction in which our lawsuit will take place as it suits us," (so to speak).

Not exactly a government by the people for the people.

This isn't exactly a new development. It's been this way for hundreds of years in countries that rely on common law, including the entire history of the U.S. [wikipedia.org] The court made the legally correct (though possibly morally wrong) decision.

True, but the implications of "The United States, as [a] sovereign, 'is immune from suit save as it consents to be sued... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit,'" is particularly frightening language to me.

This isn't exactly a new development. It's been this way for hundreds of years in countries that rely on common law, including the entire history of the U.S.

It's not new, but it sure sounds scary to the ignorant/uninformed (no offense to the GP).This is the type of stuff they teach in civics & political science classes.I just find it astounding that there are people who don't understand the basic characteristics of a State.

Note to/.'ers: If you ever have kids, do 'em a favor and force them to take a polysci class or two. I promise you it isn't useless knowledge.

I agree with you that the decision is quite disturbing, even in the light of other comments that this has been the status quo for a long, long time.

I would have found the decision rather balanced, actually, if it had been explicitly limited to the DCMA, for several reasons. First, works of the US government (or the military, anyway) are automatically in the public domain --- the government has waived its "right" to copyright. Interestingly, this means that the crack itself is in the public domain (but not the cracked software, which is a derived work). Secondly, if the US gov't is not bound by the DCMA, it is then legal for it to distribute tools for breaking DRM, which might be useful in many situations (e.g., if Microsoft is vaporized in a war, or if public libraries need them for the purposes of archiving cultural works in danger of disappearance).

I'm no lawyer, but I read that as, "We're the government, we can't be sued except when we want to be sued and even then we'll define the conditions of the jurisdiction in which our lawsuit will take place as it suits us," (so to speak).

Not exactly a government by the people for the people.

Actually that's exactly what it is. People are bad enough these days with civil lawsuits (which by the way have their own conditions and limitations, imagine if they could sue over any little thing and the government had to let them do it.

I don't like roads, I'm going to sue the government to get rid of them.
I don't like the police, I'm going to sue the government to get rid of them
I don't like public schools, I'm going to sue the government to get rid of them.
I think black people should be slaves, I'm going to sue the government to get rid of the 13th Amendment.

The government is elected by the people, and for the most part works for the people. What you are hinting at would be legal anarchy at best, a tyranny of the wealthy at it's worst who could employ vast pools of lawyers to strip away every right and freedom you currently enjoy.

If you're driving along.. and a cop car rear ends you, without it's lights on... you cant sue the police department, at least in most states. They dont have to pay to fix your car, you're just SOL and have to fix your own car.

that must vary by state, 4-5 years ago we had a boat for sale alongside a relatively busy 2 lane road near Atlanta, GA. about 2am one day a couple of cops were chasing a speeder and doing 75+ around a corner that is dicey at 55, one of them made it, the other one went off the road, through the fence and into a 6' bushhog, then on into our boat, the tongue of the trailer was bent, the post that the winch bolts to was snapped off and there was a large (>2' across and 8" deep) dent in the bow of the boat. the police departments insurance paid for out boat, the bushhog and repairs to the horse trailer that they hit after hitting our boat.

Yes it does vary by state to state. Here in michigan they passed a law that makes the police immune from any legal and civil actions to help them in their fight against terrorism and the war on drugs.

If they raid your house by accident, kill your family dog and trash the house you have NO RECOURSE for restitution. Hell they will not even apologize because that is an admission of guilt or improper action.

They pile on laws like this a little at a time to help protect you. It's for your protection you know.

Maybe the police, even though they might have immunity, realize that they might lose it if they abuse it too much - the occasional problem might be fine, but screw over too many upstanding, successful citizens and next thing you know you have a liability responsability bill passing through the state congress. Complete with a couple weapy families to get the sympathy vote.

The occasional illegal drug user, hooker, or john - they don't have much in the way of defenses. Nobody's real sympathetic for the rapists, molesters, and beaters.

On the other hand, there's a case right now where SWAT busted into a mayor's house, killing both their dogs, that were running AWAY from SWAT. They were labradors! Somebody mailed his wife a bunch of pot - which seems odd, as no other drugs were in the house except for the still sealed package, everybody in the house tests negative for drugs*, etc...

It seems somebody mailed the drugs to deliberately cause trouble - much like the asshat who faked 911 calls.

Oddly enough, even in the USA, for upstanding people it's often cheaper to apologize(even if you admit no specific wrongdoing) and pay for damages.

In one case there was a drug raid on the wrong house, that of a grandmother. Fortuantly, the mistake was quickly realized. The sheriff showed up, personally apologized to the grannie - including a bit of a fix, along the lines of 'I'm sorry, we had what we thought was a valid tip, we'll review procedures'. Posted a deputy to guard the door for the few hours until morning when the department hired carpenter came to fix the door.

What lawsuit can you have that DOESN'T cost you $750, in lawyer's fees alone, even if you're going to pull an immunity clause? Meanwhile the grannie is happy with the police - despite having her door broken in the middle of the night. The police are out there *protecting* people. Yes, they're not perfect, but they made good on their mistake.

That's the model police and other government agencies should be going for. I'd support an innocence fund as well - if a convicted person is later proven innocent, the fund can pay out for the imprisonment. Yes, mistakes occur. But it's normally cheaper in the long run to pay out on valid claims without involving the courts. Take prison - how many lawsuits would be successful if the state automatically paid $20k per year of imprisonment to people falsely convicted? $20k really isn't that much, but after 10 years, $200k would pay for an education, living expenses, basically a transition back to outside life. You could even cap it at $250-500k(depending on average state income, living cost levels). Instead of having to beg the governer for a job after spending 40 years behind bars, ending up with an almost minimum wage job as a janitor in the state building. For the guy who spends 40 years behind bars before it's found out that, no, he didn't rape that girl, well, he doesn't even qualify for much social security, not having held a real job enough to gather the necessary SS credits, work experience, etc... So maybe capping isn't the greatest idea.

Of course, I'm also all for throwing cops, prosecuters, and judges who misrepresented the facts in order to gain a conviction of an innocent man. If the facts were presented as best known to them - well, shit happens sometimes. All we can do is our best.

Of course, I also support having a fund for this sort of stuff - lawyers fees, damages, and such come out of the fund. If any is left at the end of the fiscal year, it's paid as bonuses to the officers. They don't screw up, they get bonuses. They screw up too much, they don't.

Check your facts next time. First of all if a TOWN makes it illegal to do something, that's not exactly CONGRESS passing a law now is it? Second, check and see if your local police department has liability insurance (hint: they do) when you find out that they do have said insurance, contemplate the usefulness of said insurance if the police department could not be held accountable legally for anything they damage.

He's an idiot. He created something then offered it to his boss who let him install it. That gave them their license. By putting in a timer he was in effect installing a defect which if it impacted the performance of his unit could be construed as conduct unbecoming, dereliction of duty or deliberate sabotage. He needs to be booted for conduct unbecoming if nothing else, given a general discharge and told to walk. The Air Force needs to recover all the data this third party has to their software.

Sorry, but no, he didn't install a defect. The military knew that the expiration code was there and when it would expire - he wasn't springing a trap. And the software was not life-critical. He did nothing criminal.

The military handled this very badly. The guy may have made limited use of military resources for testing, but the testing was done only for the use of the military, not for third parties. He developed the software on his own, outside of his job responsibilities. He wasn't a programmer and when he asked for training in programming they refused him. It's his software. If the military hadn't been complete assholes they would have paid him a bit and given him a pat on the back and the problem would never have arisen.

No offense, but as a former Staff Sergeant in the USAF, I can tell you that the Air Force doesn't work the way you're saying. Maybe you'll disagree with the law, but the law doesn't give the government total ownership of everything that our military personnel create on their own time.

The Air Force encourages personnel to take up a second job if they choose to do so-- as long as they understand that the Air Force comes first.

Part of the process of obtaining a second job involves a series of briefings on preventing conflicts of interest and improper use of government equipment. Part of the briefing is a segment explaining that works created on YOUR OWN TIME are YOUR PROPERTY. Examples are given of guys who created new tools to improve life at work-- and then sold them back to the Air Force.

And as for the "system"-- often times, the "system" that the Air Force uses is developed in-house, by people who are PAID FOR THAT JOB by the Air Force. Under federal copyright law, government-created works aren't subject to copyright (look it up). As long as the data system wasn't classified or OTS software, Sergeant Davenport has every legal right to copy, improve, and even sell back the software that the USAF has developed-- it's public domain.

The Air Force encourages personnel to take up a second job if they choose to do so-- as long as they understand that the Air Force comes first.

My family has been airforce for 3 generation I know that line very well. It's because the enlisted men don't get enough pay to be able to care for their family. It's disgusting that an enlisted man and his wife cant afford to raise a child without him also working a second job.

It's also shameful that we had to live off base because we could not afford family housi

The fact that he was nasty or not has nothing to do with the DMCA violation. If someone broke the law then he broke the law, no matter that by breaking the law he uncovered some other criminal act. You can not break and enter so that you can prove that your neighbour is running some extortion racket. The police can, if they have a proper authorisation from a judge, but you can not. If you do, you might go to jail while your neighbour might actually walk.

Now the government clearly stated that they are above the law; they are the sovereign, they make the law and the law applies only to their royal subjects, serfs and lesser vermins also known as "the people". This system is known as democracy. It is in stark contrast with the system of tyranny, where there is a tyrant, a sovereign making the law that only applies to his royal subjects, serfs and other vermins also known as the "oppressed".

Even for civilians, the ownership of works created off-site still varies by state. In California, it's explicitly stated that, with the exception of a few well-delineated items, if you don't create it on employer time, premises, and/or equipment, and especially if it's not something that the employer already does, then you own it. I've had to bring this up to a couple of employers in the past, and had letters added to my file regarding it to ensure that they know that I know it.

Alright, so all he has to do is show that he NEVER so much as researched his program on-site, NEVER fixed a bug on-site as a result of the beta testing, NEVER asked anyone for suggestions for his program on-site, NEVER promoted or advertised his product on-site, and he's fine then. "Especially if it's not something that the employer already does" is not even remotely relevant - he wrote a replacement for the HR program it was his job to maintain.

I don't see what new information provides this in that regard. It's always been very difficult to win financial damages from the federal government in civil court. Even when a court finds that a person's constitutional rights have been violated, the relief typically involves (a) a cease and desist order enjoining the government from continuing the behavior called out in the lawsuit, and/or (b) at best compensatory damages, for instance when someone's property is seized, the court may order it returned in

The problem as I see it is not whether a sovereign entity has the legal or moral right of immunity from law. That is somewhat misleading for the exact reason and example you provide. The problem is, in my view, thankfully much smaller in scope, and that is the problem of compensation. That is to say, if the government (of the people or otherwise) decides to appropriate a work product without reasonable compensation for that work, then where does this logic end under such legal precedent? Why not simply

If the DMCA refers only to individuals, and not to organizations like a company or government, then shouldn't Google's YouTube be in the clear against Viacom? or the ThePirateBay in the clear from... everyone?

Something here is off, or the DMCA just got castrated with this new precedent.

Well legally speaking, a corporation "is" a person (in the sense that it can own property, write checks, etc). The government, on the other hand, well... it's the government. It'll do what it damn well pleases and you'll like it.

Could be me, but I learned at school that the cornerstone of a working democracy is that everyone's equal, especially when facing the law. Did that change somehow, or is the system just not working anymore?

Oh, good. Another judge reading what is actually in copyright law.
Wait, does he have a license to do that?
Does the copyright law say that a license to practice law allows him to read that text and do whatever he wants with it?

Here is the actual court decision [uscourts.gov], which contains a more detailed account of what actually happened. Among other things, it makes it clear that the source code never left the guy's home.

BUT: he writes a piece of software at home, and then brings it to work to 'test'? In fact, he's running unverified, non approved software on a military computer, most likely networked to other military computers? Seriously, WTF?

It boggles me that IT security is that lax in a military organisation - our setup won't let me run anything than the approved, verified apps delivered over the network - operational security being key. And don't even think of executing something of a removable media...

We all know that pretty much anyone can be bought (if the offer is high enought) - what if he had been less upright and loyal and had put a trojan or two into his program?

Soverign immunity is a legal concept the US inherited from english law.

"sovereign is exempt from suit [on the] practical ground that there can be no legal right against the authority that makes the law on which the right depends." 205 U.S. 349, 353."

The DMCA gives legal rights to copyright holders, however those rights cannot be used to sue government agencies since the government did not give permission. Common law copyright was abolished in the US in 1790, copyright only exists in the US to the extent congress allows it.

In this case, the USAF owned the software. The people who bought it were wrong.

If you read the enlistment contract, it clearly spells out that you are on duty pretty much all the time - as in 24/7. That's why the military doesn't pay overtime and why you get 30 days vacation - because you don't have to get any other time off. Even at home, you're still on duty.

I know, I did it for 21 years. Stuff you develop for the military while in uniform belongs to the military.

So it really wasn't a DMCA issue at all. (Not that I don't think the DMCA is a crock, but it doesn't even apply in this case.)

Guy hates the software he uses at work.Guy learns to program.Guy hands out free copies of superior program at work and everyone loves it.Program cripples itself after trial period.Guy: A ha! Now you have to pay me money to get it working again!USAF: A ha! We're the Government you moron.

It's a reasonable, but narrow, decision. The decision turns on a section of the Copyright Act that says a government employee "shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government." That's what happened here. Davenport used his job in the USAF to introduce his manpower-management software into USAF use. He wasn't an outside supplier.

The DMCA issue is one of jurisdiction. This case was filed with the Court of Federal Claims, which handles copyright claims against the Government. But the DMCA specifies that DMCA anti-circumvention claims must be brought in federal district courts. It's a narrow ruling; it's not clear what would happen if a DMCA case was brought in a district court. Especially if it was brought against the company that did the cracking, SAIC.

You have an odd idea of what makes a work for hire. The guy's job was explicitly not programming. He actually asked for training in programming and was turned down. It appears that he in fact did do all of the work on his own time with the possible exception of listening to requests for improvements in the software that he graciously provided at no cost.

Even if he did do some of the work while on duty, that wouldn't make it government property. It would only be government property if it was the product of his job. Suppose that a soldier while on duty works on his novel or that a sailor carves scrimshaw. Do you think that the resulting novel or carving cease to be his property? No, they don't, because they weren't made in the course of his job.

There is no work-for-hire for active-duty personnel, because that is a huge conflict-of-interest. The code may belong to him but he belongs to the USAF, so by association (and about a million procurement regulations) the code belongs to the USAF as well. This shouldn't come as any surprise, as anybody who creates stuff for the military knows it belongs to the military.